State v. Frank

• Decision Date: 14 November 1973
• Docket Number: No. 67,67
• Citation: 200 S.E.2d 169,284 N.C. 137
• Parties: STATE v. North Carolina v. Michael Terry FRANK.
• Court: North Carolina Supreme Court

Page 169

200 S.E.2d 169

284 N.C. 137

STATE v. North Carolina v. Michael Terry FRANK.

No. 67.

Supreme Court of North Carolina.

Nov. 14, 1973.

Robert Morgan, Atty. Gen., and Walter E. Ricks, III, Asst. Atty. Gen., for the State of North Carolina.

Carter G. Mackie, Raleigh, for defendant appellant.

HUSKINS, Justice:

The burglary and larceny warrants were served on defendant on 19 May 1972. On 23 June 1972 defendant filed a written motion in Wake Superior Court demanding a speedy trial on the charges. Indictment was returned in the burglary case on 31 July 1972 and in the larceny case on 28 August 1972. No action was taken on defendant's motion until the cases were called for trial on 24 April 1973. Before pleading to the bills of indictment defendant moved to dismiss for failure to afford him a speedy trial. Denial of said motion constitutes defendant's first assignment of error.

The record discloses that when defendant moved for a speedy trial on 26 June 1972 he was then serving six life sentences plus a term of ten years imposed at the 2 June 1972 Session of the Superior Court of Nash County upon defendant's pleas of guilty to six charges of second degree burglary and one count of breaking, entering and larceny. In response to an inquiry by the court, defendant and his counsel both stated that no witnesses essential to defendant's defense have disappeared, or would have been available in August 1972 but are not now available. In such a factual context the motion to dismiss was properly denied.

Of course the right to a speedy trial is an integral part of the fundamental law of this State, and the fact that an accused is in prison for other offenses does not mitigate against his right to a speedy and impartial trial. State v. Johnson, 275 N.C. 264, 167 S.E.2d 274 (1969); Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). Even so, the burden is on an accused who asserts denial of his right to a speedy trial to show that the delay was due to the neglect or willfulness of the prosecution. State v. Harrell, 281 N.C. 111, 187 S.E.2d 789 (1972); State v. Johnson, supra; State v. Hollars, 266 N.C. 45, 145 S.E.2d 309 (1965).

[3,4] 'The word 'speedy' cannot be defined in specific terms of days, months or years, so the question whether a defendant has been denied a speedy trial must be answered in light of the facts in the particular case. The length of the delay, the cause of the delay, prejudice to the defendant, and waiver by defendant are interrelated factors to be considered in determining whether a trial has been unduly delayed.' State v. Brown, 282 N.C. 117, 191 S.E.2d 659 (1972). Here, the record is silent as to the cause of the eight to ten months delay in the trial of these cases. The length of the delay itself is not Per se determinative, and there is no showing that the delay was purposeful or oppressive or by reasonable effort could have been avoided by the State. See Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957). The record affirmatively shows that defendant has not been prejudiced. He has not lost the benefit of any witnesses and has lost no 'institutional opportunities.' No detainer was filed in either case by the office of the solicitor; hence, there is no reasonable basis for the assertion that the pendency of these two cases and any effect on defendant's treatment in prison, his classification as an inmate, his chances for parole, work release, good behavior credits, or in any other respect. See State v. White, 270 N.C. 78, 153 S.E.2d 774 (1967).

We conclude that the length of the delay was not unreasonable and the delay itself was not prejudicial to defendant in preparing and presenting his defense. The constitutional right to a speedy trial prohibits arbitrary and oppressive delays by the prosecution. State v. Johnson, supra. The right is necessarily relative and under many circumstances is consistent with delays. State v. Spencer, 281 N.C. 121, 187 S.E.2d 779 (1972); Beavers v. Haubert, 198 U.S. 77, 25 S.Ct. 573, 49 L.Ed. 950 (1905). Defendant's first assignment of error is overruled.

When the Rocky Mount police officers searched defendant's premises for items stolen from break-ins and robberies in and around Rocky Mount, they found, in addition to other stolen property, the property taken from the Finch home. These items were received in evidence over objection, and this constitutes defendant's second assignment of error. Defendant contends he did not consent to a search of his residence for the Finch items and argues that he was not warned that those items, if found, could be used in evidence against him.

The question posed by this assignment has already been judicially determined contrary to defendant's position. 'Warnings required by Miranda are inapplicable to searches and seizures, and a search by consent is valid despite failure to give such warnings prior to obtaining consent. It was so held in State v. Oldham, 92 Idaho 124, 438 P.2d 275; People v. Trent, 85 Ill.App.2d 157, 228 N.E.2d 535; State v. McCarty, 199 Kan. 116, 427 P.2d 616; Lamot v. State, 2 Md.App. 378, 234 A.2d 615; State v. Forney, 182 Neb. 802, 157 N.W.2d 403, cert. den. 393 U.S. 1044, 89 S.Ct. 640, 21 L.Ed.2d 593. We adhere to that view. Furthermore, appellant has cited no decision, nor have we found any, holding that officers investigating a crime are required by the Federal Constitution to preface a request to search the premises with Advice to the occupant that he does not have to consent to a search, that he has a right to insist on a search warrant, and that the fruits of the search may be used as evidence against him.' State v. Virgil, 276 N.C. 217, 172 S.E.2d 28 (1970).

Here, after full Miranda warnings and waiver of counsel in writing, defendant talked freely with officers concerning various crimes committed in the Rocky Mount area. Defendant told the officers he would take them to the house where the stolen property was concealed. 'We told him that we would like to recover the property and the defendant told us that he would take us around to the house and we asked him if we could search the house. The defendant said that we could and that he would take us around there.' Thus the evidence shows, and the trial court found on voir dire, that defendant consented to the search. We are bound by that factual finding. State v. Little, 270 N.C. 234, 154 S.E.2d 61 (1967). Consent to search, freely and intelligently given, renders competent the evidence thus obtained. State v. Hamilton, 264 N.C. 277, 141 S.E.2d 506 (1965); State v. Coffey, 255 N.C. 293, 121 S.E.2d 736 (1961). Defendant's second assignment of error is overruled.

Defendant objected to Detective Ausley's testimony narrating defendant's confession. The jury was excused and a voir dire examination conducted by the court. On voir dire, evidence elicited by the State--defendant offered none--is to the effect that after full Miranda warnings and waiver of counsel in writing, defendant stated 'that around the 20th of April he parked a Rambler that he had stolen in Rocky Mount on St. Mary's Street; that he walked around behind the house across the street from the point where he parked the Rambler. He saw a ladder up to one of the windows, climbed the labber, used a knife to unlock the window, went into the house, got the keys to the car, a clarinet, a trumpet and a small tape deck. After leaving the house he took a green Ford from behind the house.'

At the conclusion of the voir dire the court stated: 'Then the objection will be overruled. The court will receive in evidence in response to additional questions to the witness with regard to conversations that he had with the defendant on May 19. A formal order will be prepared. You will both be furnished with copies of it.' The jury was recalled and defendant's incriminating statement was received in evidence. Apparently by oversight no formal order was ever prepared, and the record is bare of any findings of fact following the voir dire. Relying on the absence of such findings, defendant assigns as error the admission, over objection, of his incriminating in-custody statements.

The purpose of the voir dire was to hear evidence and determine whether defendant's statements to Detective Ausley were made voluntarily and understandingly and after he had been fully warned of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The test of admissibility is whether the statement by the defendant was in fact voluntarily made. State v. Jones, 278 N.C. 88, 178 S.E.2d 820 (1971); State v. Rogers, 233 N.C. 390, 64 S.E.2d 572 (1951). Whether the statement, if made, was made voluntarily and understandingly is a question of fact to be determined by the trial judge in the absence of the jury upon the evidence presented on the voir dire. State v. Clyburn, 273 N.C. 284, 159 S.E.2d 868 (1968); State v. Outing, 255 N.C. 468, 121 S.E.2d 847 (1961). 'The trial judge should make findings of fact with reference to this question and incorporate those findings in the record.' State v. Gray, 268 N.C. 69, 150 S.E.2d 1 (1966). The inadvertent omission, however, to make such findings does not require a new trial in the factual setting of this case. 'While it is the better practice for a judge on a voir dire respecting an alleged confession to make his finding as to the voluntariness thereof and enter it in the record, a failure to do so is not fatal. Voluntariness is the test of admissibility, and this is for the judge to decide. His ruling that the evidence was competent of necessity was bottomed on the conclusion the confession was voluntary . . . There is nothing in this record upon which a contrary conclusion could be based.' State v. Litteral, 227 N.C. 527, 43 S.E.2d 84 (1947). So it is here.

As stated in State v. Doss, 279 N.C. 413, 183 S.E.2d 671 (1971), 'it is better practice for the court to make such findings at...